Thursday, December 16, 2010

Another December, Another Exam

By Mike Dorf

Continuing in a tradition I began a little while back, I offer the exam I recently gave for my first-year Con Law students. They had 8 hours to complete it. Because grading the real exams is work enough, I won't comment on any readers' comments. There are three questions of equal weight.

Under the individual mandate provisions of the Affordable Care Act (sometimes called “Obamacare” by its detractors), a person who does not otherwise have health insurance is required to purchase such insurance if he or she can afford to do so. Based on the definitions in the Act, that means that any otherwise uninsured person who can purchase health-care insurance for no more than eight percent of his or her monthly income and is above the poverty line, must purchase such insurance. Beginning in 2016, failure to do so will result in an annual federal tax liability of the greater of $695 or 2.5 percent of income.

As you may know, attorneys general in several states have challenged the individual mandate in court. Those cases are currently pending. Meanwhile, Tennessee state General Assemblyman James “Jimbo” Delahuntmanson has an idea for “knocking out Obamacare.” According to a bill proposed by Delahuntmanson, “effective in 2016, any person whose federal income tax return shows payment of the Obamacare fine for failure to comply with the unconstitutional individual mandate shall receive a state income tax credit equal to exactly the amount of his or her federal tax liability.”

For winter break, you have been fortunate enough to obtain a position as an unpaid intern in the Justice Department. One late night while you are at your desk reviewing deposition transcripts from a mail-truck accident case, a very tired-looking man wanders by your cubicle muttering to himself.

“Hey you!” says the tired-looking man. “Have you seen this?” He shows you the language quoted above from Delahuntmanson’s bill. After you read it, he tells you to write a memo addressing the question of whether the Delahuntmanson bill, if enacted, could be enjoined as pre-empted by the Affordable Care Act. The proposed injunction would issue from a federal court following a lawsuit filed by the Justice Department. The tired-looking man is U.S. Attorney General Eric Holder. Write the memo.

Question 2

The federal statute codified at 10 U.S.C. § 654, and commonly called “Don’t Ask Don’t Tell” (hereafter “DADT”) provides that any member of the U.S. Armed Forces who engages in homosexual conduct is subject to discharge unless the service member is able to demonstrate that he or she has no propensity to engage in “homosexual conduct.” Under the law, “homosexual conduct” includes sexual acts with persons of the same sex, admissions that one is homosexual or bisexual, and attempts to marry a person of the same sex. President Obama campaigned for office on a pledge that he would seek the repeal of DADT, but has thus far been unable to secure passage of a repeal bill. To this point his Administration has defended DADT against legal challenge in the courts but he has recently had a change of heart.

The President now believes that DADT unconstitutionally denies equal protection and accordingly, has issued an executive order to the armed services directing that DADT be treated “as a legal nullity.” The executive order invokes the President’s powers “as Commander in Chief during a war in Afghanistan that was authorized by Congress and ongoing military action in Iraq, also authorized by Congress.”

Lemuel Joseph Schnizelbacher, a.k.a. “Joe the Sailor,” is a 20-year-old unemployed heterosexual high-school graduate who has sworn in an affidavit that he was planning to join the Navy until President Obama issued the executive order. Schnizelbacher further states that he now will not join the Navy because he fears the non-enforcement of DADT violates his right to privacy. He has filed a lawsuit against Secretary of Defense Robert Gates and Navy Secretary Ray Mabus. Schnizelbacher's complaint seeks an injunction ordering the enforcement of DADT and/or “damages to compensate for the Navy salary and benefits that would have accrued to plaintiff from joining the Navy.” The complaint alleges that so long as DADT remains on the books, the President has a constitutional duty to enforce it.

Because you did such a good job with the Tennessee case, Attorney General Holder has asked you to write a memo assessing the constitutional issues raised by Schnizelbacher’s lawsuit. Write the memo.

Question 3

Having completed your internship with the Justice Department, you decide to take a vacation in Florida. While relaxing on the beach, you get a frantic phone call from your college friend Sally Wunnel, who attends a law school in which constitutional law is not taught in the first semester of the first year. She is working as an unpaid intern for the City of Tallalando, Florida. She tells you the following facts.

The City of Tallalando, Florida, experienced rapid development and a housing boom that extended into mid-2007. Since the peak of the market, however, Tallalando housing prices have fallen by 80% and numerous single-family homes have been foreclosed. Of those foreclosed homes, approximately 20,000 are currently unoccupied. With so many vacant properties, crime is on the rise in Tallalando. Gangs of squatters occupy substantial swaths of the city, including many of the foreclosed homes.

To combat the gangs, the state of Florida has stationed over 500 state militia troops throughout the city. Unable to afford to provide these troops with housing, the state has authorized the troops to camp in any otherwise unoccupied foreclosed house from which they have first cleared squatters. Troops were given instructions to prioritize clearing squatters suspected of gang affiliation.

Ginormic Bank (a Delaware corporation) owns approximately 5,000 unoccupied foreclosed homes in Tallalando. Although the presence of state militia in Ginormic-owned homes (and in other homes) in Tallalando will almost certainly increase the value of the Ginormic homes, Ginormic has nonetheless sued the Governor of Florida in federal district court, seeking an order that the state remove its troops from the Ginormic-owned homes.

Sally thinks that Ginormic is suing because it stands more to gain than to lose from the decrease in property values in Tallalando. That’s because, in addition to owning the foreclosed Tallalando properties, Ginormic also owns a very large hedging portfolio that takes a short position on synthetic collateralized debt obligations based on other properties throughout Tallalando. Thus, the more property values in Tallalando decline, the more likely it becomes that additional outstanding loans will stop performing, and thus, the more money Ginormic stands to earn by not having to pay its co-parties on the synthetic CDOs.

Sally has been asked by her boss to write a memo addressing the constitutional issues raised by Ginormic’s lawsuit. The only basis for relief asserted in Ginormic’s complaint is “the Third Amendment of the U.S. Constitution, as made applicable to the states via the Fourteenth Amendment.” What should Sally write in her memo?

At first thought, I'll guess that preemption would need to be specified in the federal legislation, because coupling state tax rules to federal ones doesn't inherently create a dormant conflict. Our system of federalism gives states some sovereign authority to react when the feds pass laws. And if states use federal deductions to give residents the same break on state taxes, what's different if the state wants to offset a federal *increase* the same way? As long as the feds can collect, all is well. In fact, the state bill in this example might make everything better -- because it would be sort of subsidizing the federal side.

On (2), my first thought is that Truman steel case -- where the president is at his weakest in Article II power when Congress has specifically acted. In this case, DADT is the law, so that executive order is tantamount to W ignoring anti-torture statutes.